AUTHORITATIVE ENGLISH TEXT
Bill No. 26 of 2012.
THE HIMACHAL PRADESH LOKAYUKTA BILL, 2012
(AS INTRODUCED IN THE LEGISLATIVE ASSEMBLY)
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THE HIMACHAL PRADESH LOKAYUKTA
BILL, 2012
ARRANGEMENT OF CLAUSES
Clauses:
1.
Short title, extent and commencement.
2.
Definitions.
3.
Establishment of Himachal Lokayukta.
4.
Appointment of Lokayukta and Up-Lokayuktas.
5.
Search Committee.
6.
Selection of Lokayukta and Up-Lokayuktas by the Selection
Committee.
7.
Term of office of Lokayukta and Up-Lokayuktas.
8.
10.
Salaries, allowances and other conditions of service of Lokayukta and
Up-Lokayuktas.
Restriction on employment by Lokayukta and Up-Lokayuktas after
ceasing to hold office.
Secretary, other officers and staff of Himachal Lokayukta.
11.
Powers and functions of the Himachal Lokayukta.
12.
Inquiry by Himachal Lokayukta.
13.
Complaints and preliminary inquiry and investigation.
14.
Persons likely to be prejudicially affected to be heard.
15.
16.
Himachal Lokayukta may require any public servant or any other
person to furnish any information etc.
Investigation Wing.
17.
Himachal Lokayukta Police Stations.
18.
Complaint Authority.
19.
Constitution of Special Courts.
20.
Letter of requests in certain cases.
21.
Prosecution Wing.
22.
Himachal Lokayukta to have powers of Civil Court in certain cases.
23.
Proceedings of Himachal Lokayukta.
9.
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24.
Removal of Lokayukta and the Up-Lokayuktas.
25.
Budget of Himachal Lokayukta.
26.
Annual reports of Himachal Lokayukta.
27.
Inquiry against high functionaries.
28.
Continuation of Enquiry in case of death of Complainant.
29.
Withdrawal of complaint.
30.
Power to make rules.
31.
Power to make regulations.
32.
Whistle blowers.
33.
Power to remove difficulty.
34.
Protection of action taken in good faith.
35.
Lokayukta, Up-Lokayuktas, officers and employees of Himachal
Lokayukta to be public servants.
36.
Act to have overriding effect.
37.
Provisions of this Act to be in addition to other laws.
38.
Power to delegate.
39.
Repeal and Savings.
THE SCHEDULE
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Bill No 26 of 2012
THE HIMACHAL PRADESH LOKAYUKTA BILL, 2012
(AS INTRODUCED IN THE LEGISLATIVE ASSEMBLY)
A
BILL
to re-enact the law to provide for establishment of an independent body of
Himachal Lokayukta to inquire into complaints and allegations of corruption
against public servants and public functionaries and for matters connected
therewith or incidental thereto.
BE it enacted by the Legislative Assembly of Himachal Pradesh in the Sixtythird Year of the Republic of India as follows:CHAPTER I
PRELIMINARY
Short title, extent
and
commencement.
1.
(1) This Act may be called the Himachal Pradesh
Lokayukta Act, 2012.
(2) It extends to the whole of the State of Himachal
Pradesh and also applies to the public servants who
are posted outside the state of Himachal Pradesh in
connection with the affairs of the State.
(3) It shall come into force on such date as the State
Government may, by notification, appoint.
Definitions.
2. (1) In this Act, unless the context otherwise requires,(a)
“allegation” in relation to a public servant
means any affirmation that such public
servant(i) has knowingly and intentionally
4
abused his position as such to
obtain any undue gain or favour to
himself or to any other person or to
cause undue harm or hardship to
any other person as actuated in the
discharge of his functions by
improper or corrupt motives
thereby caused loss to the State or
any member or section of the public
or lack of integrity in his capacity as
such public servant; or
(ii)
is guilty of corruption; or
(iii)
is in possession of pecuniary
resources
or
property
disproportionate
to
his
known source of income and
such property is held by the
public servant personally or
by any member of his family;
Explanation. - For the purpose of this
sub-clause, ‘family” means husband,
wife, and dependent minor children
including adopted children.
(b)
“complaint” means an allegation, made in
such form as may be prescribed, alleging
that a public servant has committed an
offence punishable under the Prevention of
Corrupt Act, 1988 or the Himachal
Pradesh Prevention of Specific Corrupt
Practices Act, 1983 or Chapter IX of the
Indian Penal Code;
(c)
“competent authority”
public servant means,-
in relation to a
(i)
in the case of Chief Minister, the
Legislative Assembly of the State;
(ii)
in the case of member of the Council
of Ministers, Minister of State,
Deputy
Minister
Chief
Parliamentary
Secretary
or
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Parliament
Minister;
Secretary,
the
Chief
(iii) in the case of a Member of the State
Legislature, other than a Minister,
Chief Parliamentary Secretary, or
Parliamentary
Secretary,
the
Speaker of the House;
(iv) in the case of a Vice-Chancellor, ProVice-Chancellor of a University
substantially funded by the State
Government and established under
any Act of the State Legislature the
Governor as Chancellor of
the
University;
(v)
in the case of a member of the All
India
Service
or
Head
of
Department, the Chief Minister;
(vi)
in the case of a member of Judicial
Services including subordinates staff,
the High Court;
(vii)
in the case of other officers in the
Department
of
the
State
Government, the Minister-in-Charge
of the Department under which such
officer is serving;
(viii) in the case of Chairperson, Vice
Chairperson, Member of any Body,
Board,
Corporation,
Authority,
Company, Society or autonomous
body (by whatever name called)
established or constituted under any
Act of Parliament or of a State
Legislature wholly or substantially
financed or controlled by the State
Government, the Chief Minister;
(ix)
in the case of any officer of the Body,
Board,
Corporation,
Authority,
Company, Society or autonomous
body (by whatever name called)
established or constituted under an
Act of Parliament or of a State
Legislature wholly or substantially
financed or controlled by the State
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Government, the Head of such Body,
Board,
Corporation,
Authority,
Company, Society or autonomous
body; and
(x)
in any other case, not falling
under sub-clauses (i) to (ix)
above, such authority as the
State Government may, by
notification, specify:
Provided that if any person referred
to in sub-clause (ix) is a Member of the
State Legislature, then the competent
authority shall be the Speaker of the
House;
(d) “corruption” means and includes(i)
the allegations of favouritism,
nepotism and lack of integrity in his
capacity as public servant;
(ii)
any act made punishable under the
Prevention of Corruption Act, 1988;
(iii) any act made punishable under the
Himachal Pradesh Prevention of
Specific Corrupt Practices Act, 1983;
(iv) any act made punishable under
Chapter IX of the Indian Penal
Code; or
(v)
victimization of a whistle blower or a
witness.
(e) “Full Bench” means Lokayukta and UpLokayuyktas taking decisions collectively;
(f) “Governor” means the Governor of Himachal
Pradesh;
(g) “Himachal Lokayukta” means an institution of
Lokayukta comprising of Lokayukta and UpLokayuyktas collectively;
(h)“Lokayukta” means a
Lokayukta under Section 4;
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person
appointed
as
(i) “Up-Lokayuktas” means the persons appointed as
Up-Lokayukta under Section 4;
(j) “Minister” means Minister of a State Government
but does not include the Chief Minister;
(k)“notification” means the notification published in
the Official Gazette and the expression “notify” shall
be construed accordingly;
(l)“preliminary enquiry”
conducted under this Act;
means
an
(m)“prescribed” means prescribed by rules
under this Act;
enquiry
made
(n)“Public Authority” means any authority or body
or institution of self-governance established or
constituted-
i. by or under the Constitution; or
ii. by or under any other law made by
the State Legislature; or
iii. by notification by the Government,
and includes any Body owned,
controlled or substantially financed
by the Government;
(o) “public servant” means a person who has held or
is holding public office and is or has been public
servant within the meaning of section 2(c) of the
Prevention of Corruption Act, 1988, and shall
include,(i) the Chief Minister of Himachal
Pradesh, all Ministers in the
Council of Ministers of Himachal
Pradesh, Ministers of State,
Deputy
Minister,
Chief
Parliamentary
Secretaries,
Parliamentary Secretaries and
Member of Legislative Assembly;
(ii)
a Chairman, Vice-Chairman,
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Managing Director, Member of
the Board of Directors or Chief
Executive Officer, (by whatever
name called) of a Government
Company within the meaning of
section 617 of the Companies
Act, 1956, in which not less than
fifty-one percent of the paid up
share capital is held by the State
Government, or any company
which is a subsidiary of a
company in which not less than
fifty-one percent of the paid up
share capital is held by the State
Government;
(iii)
a Mayor, Deputy Mayor,
Councilor or Commissioner of a
Municipal
Corporation,
declared and constituted under
sections 3 and 4 of the Himachal
Pradesh Municipal Corporation
Act, 1994;
(iv)
a President, Vice-President, a
Member, Executive Officer or
Secretary of a Municipal
Council or Nagar Panchayat
constituted under section 3 of
the
Himachal
Pradesh
Municipal Act, 1994;
(v)
a Vice-Chancellor, Pro-ViceChancellor of a University
substantially funded by the
State
Government
and
established under any Act of the
State Legislature;
(vi)
a Chairman, Vice-Chairman or
Member of the Zila Parishad or
Panchayat Samiti, Pradhan, UpPradhan or Member of a Gram
Panchayat constituted under the
Himachal Pradesh Panchayati
Raj Act, 1994;
(vii)
a President, Vice-President,
Managing Director or Member
of any Managing Committee or
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Board of Director of an Apex
Society or such other Cooperative Societies incorporated
or registered under the law
relating
to
Co-operative
Societies for the time being
inforce, as may be notified by
the State Government;
(viii) a Chairman, Vice-Chairman,
Managing Director or the Chief
Executive Officer (by whatever
name called) of any statutory or
non-statutory
body
incorporated or set up by the
State Government;
(ix)
in the service or pay of
Government, a Government
Company,
Local
Body,
substantially
State
funded
University,
Zila
Parishad,
Panchayat Samiti, Apex Society,
statutory or non-statutory body
referred to in sub-clauses (ii) to
(viii) of this clause;
(x)
holding any other post or office
under the control of the State
Government or an authority
referred to in sub-clause(ix) and
notified
by
the
State
Government in the Official
Gazette from time to time; and
(xi)
Members of Judicial Services
and other staff of courts;
Explanation:- For the purpose of this clause, the
public servants shall not include the Chief Justice
and Judges of Himachal Pradesh High Court.
(p) “Rule” means rules made under Section 30 of the Act;
(q) “regulation” means regulation made under
section 31 of the Act;
(r) “Schedule” means a schedule appended to this
10
Act;
(s)“State Government” means the Government of
Himachal Pradesh;
(t) “Special Court” means the court of a Special
Judge appointed under section 19 of the Act;
(u) “Whistle blower” means any person, who
provides factual information with substance about
corruption in a public authority by any public
servant or is a witness or victim in a case of
corruption before the Himachal Lokayukta ;
(2) The words and expression used herein and
not defined in this Act, but, defined in the Prevention of
Corruption Act, 1988 as amended from time to time, H.P.
Prevention of Specific Corrupt Practices Act, 1983 as
amended from time to time shall have the meanings,
respectively, assigned to them in that Act.
(3) Reference to any Act includes amendments
made to that Act from time to time.
CHAPTER-II
ESTABLISHMENT OF HIMACHAL LOKAYUKTA
Establishment
of Himachal
Lokayukta.
3.
(1)The State Government shall, by notification
establish Himachal Lokayukta and appoint
Lokayukta and Up Lokayuktas in the following
manner, namely:(a) a Lokayukta, who is or has been a Judge of the
Supreme Court or Chief Justice of a High Court;
and
(b) two Up-Lokayuktas out of which one UpLokayukta shall be a person of impeccable
integrity, outstanding ability having twenty five
years
outstanding
service
in
public
administration and other Up-Lokayukta shall be
a person of impeccable integrity, outstanding
ability having special knowledge and expertise of
not less than twenty five years in the matters
relating to public service, anti-corruption policy,
law or public administration:
Provided that the Lokayukta appointed prior to
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commencement of this Act shall continue to be
the Lokayukta till the completion of his term.
(2)
a person shall not be eligible to become
Lokayukta or a Up-Lokayukta(a) if he is not a citizen of India;
(b) if against him charges were ever framed
by any Court of Law for any offence
involving moral turpitude;
(c) if he has been convicted and sentenced
for a term of two years or more;
(d) if he is less than fifty-five years of age
on the date of assuming office;
(e) if he is a Member of Parliament,
Legislature or a Local Body;
(f) if he has been awarded a major penalty
during his service of the Union or
State:
Provided that Lokayukta shall not
hold any office of trust or profit (other
than his office as the Lokayukta or a UpLokayukta) or be connected with any
political party or carry on any business
or practise any profession and
accordingly, before he enters upon his
office shall, ifi. he holds any office of trust or
profit, resign from such office;
or
ii. he is carrying any business,
sever his connection with the
conduct and management of
such business; or
iii. he is practising any profession,
cease to practise such profession.
(3) The seat of the Himachal Lokayukta shall be at
Shimla.
Appointment
of Lokayukta
4.
(1) The Lokayukta and Up-Lokayuktas shall be
appointed by the Governor by warrant under his hand
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and UpLokayuktas.
and seal after obtaining the recommendations of the
Selection Committee.
(2) The Selection Committee shall consist of –
(i) the Chief Minister of
Chairman
Himachal Pradesh,
(ii) the Leader of the Opposition
Member
in the Legislative Assembly of
Himachal Pradesh,
(iii) the Chief Justice of Himachal
Pradesh, High Court.
Member
Explanation. - For the purpose of this section, where the
Leader of Opposition in the Legislative Assembly has not
been recognized, the leader of the single largest group in
opposition in the Legislative Assembly shall be deemed to
be the leader of the opposition.
(3) The Selection Committee shall select the
Lokayukta and other Up-Lokayuktas of the Himachal
Lokayukta out of a short list prepared by the Search
Committee.
Search
Committee.
5.
(1) The Search Committee shall consist of three
Members to be nominated by the Selection
Committee out of the persons having impeccable
integrity, outstanding ability having special
knowledge and expertise in the matters relating to
public service, law or public administration.
(2) The Members of the Search Committee shall be
eligible for such honorarium subject to such condition
as may be prescribed.
(3) The Search Committee shall invite applications,
seek nominations from such eminent persons or such
class of persons or organizations, whom it deem fit
and may include name of a person for consideration
as Lokayukta or Up-Lokayukta.
(4) The names of such persons with complete bio-data
shall be put on a public web-site and also published in
two prominent newspapers by the Search Committee
giving at least 15 days time for inviting any
information or objections.
(5) The Search Committee shall formulate its own
procedure for the purpose of short listing the names
to be recommended for the Selection Committee in a
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transparent manner. The Committee shall use all
means for the purpose of obtaining the information
and background and achievements of such
candidates. Such information shall inter-alia, contain
details of any allegations faced under any law, details
of his work against corruption in the past, and
reasons that why the person is suitable for the job and
any other material as the Search Committee may
decide.
(6) The Search Committee shall recommend three
names for each post. The Committee, before sending
the short list to the Selection Committee, shall get the
names of the short listed persons put on a public website to enable general public to submit any relevant
information about such persons.
Selection of
Lokayukta
and UpLokayuktas
by the
Selection
Committee.
6.
(1) The Selection Committee shall, after considering
all the relevant information about the short listed
candidates, select the Lokayukta and the UpLokayuktas of the Himachal Lokayukta preferably
through consensus.
(2) The Selection Committee after selecting the
persons to be recommended as Lokayukta or UpLokayuktas of the Himachal Lokayukta shall
ascertain their willingness to serve as such before
recommending the names to the Governor.
(3) The Government shall fill up a vacancy of the
Lokayukta or Up-Lokayukta, as the case may be
within one month from the date the Lokayukta or
Up-Lokayukta completes his term:
Provided that if the vacancy arises due to unforeseen
reasons, it shall be filled within three months from
the date of arising of such vacancy.
Term of office
of Lokayukta
and UpLokayuktas.
7.
(1) The Lokayukta and every Up-Lokayukta shall
hold office for a single term of five years from
the date on which he enters upon his office or
until he attains the age of 70 years, whichever
is earlier:
Provided that a sitting Up-Lokayukta
appointed as a Lokayukta shall hold office
for the balance term or up-to 70 years
whichever is earlier, but the total term as
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Up-Lokayukta and Lokayukta shall not
exceed five years:
Provided further that the Lokayukta or the
Up-Lokayukta may, by writing under his
hand addressed to the Governor, resign his
office.
(2) The Lokayukta and every Up-Lokayukta shall,
before entering upon his office, make and
subscribe before the Governor an oath or
affirmation in the form set out in the Schedule.
(3)
In the event of occurrence of any vacancy in
the office of the Lokayukta by reason of his
death, resignation or otherwise, the Governor
may , by notification, authorize the senior
most Up-Lokayukta to act as the Lokayukta
until the appointment of a new Lokayukta:
Provided that when the Lokayukta is unable to
discharge his functions due to leave or otherwise, the
Governor may, by notification authorize the senior
most Up-Lokayukta to discharge the functions of the
Lokayukta until he resumes his duties.
Salaries,
allowances
and other
conditions of
service of
Lokayukta
and UpLokayuktas.
8.
(1) The Lokayukta and the Up-Lokayukta shall be
paid salary equal to that of the Chief Justice of the
High Court and that of the Judge of the High
Court, respectively, and allowances and other
conditions of service shall be such, as may be
prescribed:
Provided that the salary, allowances and other
facilities provided to the existing Lokayukta
shall not be varied to his disadvantage on
becoming a Lokayukta:
Provided further that if the Lokayukta or a UpLokayukta is, at the time of his appointment, in
receipt of pension (other than a disability
pension) in respect of any previous service
under the Government of India or the State
Government, his salary in respect of service as
the Lokayukta or as a Up-Lokayukta, as the
case may be, be reduced15
(a)
by the amount of that pension; and
(b)
if he has, before such appointment,
received, in lieu of a portion of the
pension due to him in respect of such
previous service, the commuted value
thereof, by the amount of that
portion of the pension.
(2) The Lokayukta and the Up-Lokayukta shall
not be eligible for any pension for holding
the office as such:
Provided that the salary and other
condition of service of the Lokayukta or an UpLokayukta shall not be varied to his disadvantage
after his appointment.
Restriction on
employment
by Lokayukta
and UpLokayuktas
after ceasing
to hold office.
Secretary,
other officers
and staff of
the Himachal
Lokayukta
9. The Lokayukta and the Up-Lokayuktas, after ceasing
to hold office, shall be ineligible for diplomatic
assignment, appointment to any position in the
Government of India or the Government of any State
or any such body which is funded by any of the
Governments.
10.
(1) There shall be a Secretary to the Himachal
Lokayukta from All India Service in the rank of
Secretary to the State Government, to be
appointed by the State Government in
consultation with the Himachal Lokayukta.
(2) The officers and other staff of the Himachal
Lokayukta shall be taken by the Himachal
Lokayukta on secondment basis from the State
Government or from organization controlled by
the State Government:
Provided that the existing staff of the
Himachal Lokayukta shall continue to be the
employees of the Himachal Lokayukta.
(3) The Himachal Lokayukta may make its
regulations with the prior approval of the State
Government relating to creation of posts,
salary, allowances and other conditions of
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service of Secretary and other officers and
employees of the Himachal Lokayukta .
CHAPTER-III
POWERS AND FUNCTIONS OF HIMACHAL
LOKAYUKTA
Powers and
functions of
the Himachal
Lokayukta.
11.
The Himachal Lokayukta shall have the following
powers and functions, namely :(a) to initiate suo-moto action under the Act
including matters relating to allegations of
corruption;
(b) to receive complaints against public servants;
(c) to receive complaints against any officer and
other employees of the Himachal
Lokayukta;
(d) to take prosecutors and senior counsels on
retainership;
(e)
to exercise superintendence over the
investigation of offences involving any act of
corruption under this Act;
(f) to give directions to the investigation
officers for the proper investigation of such
offences;
(g) after completion of investigation in any
case involving an act of corruption, to direct
prosecution or departmental proceedings;
(h) to initiate prosecution before a Special
Court;
(i) to recommend staying, cancellation or
modification of lease, license, permission,
contract or agreement, if it was obtained
by corrupt means and to recommend
blacklisting of a firm, company,
contractor or any other person, involved
in an act of corruption. The concerned
authority shall send its compliance report
to the Himachal Lokayukta within three
17
months specifying detailed reasons,
wherever they choose not to accept any of
the recommendation;
(j) to initiate the process to get the property
and assets acquired by corrupt means
attached and confiscated in accordance
with law;
(k) to take appropriate action in accordance
with
this Act to ensure due compliance
of its orders;
(l) to make recommendations to public
authorities, to make changes in their work
practices to reduce the scope for
corruption
and
whistleblower
victimization;
(m) to require any Public Authority to render
any specific help required by the
Himachal Lokayukta ; and
(n) to authorize issue of letter of request in
relation
to
any
case
pending
investigation under this Act.
CHAPTER-IV
INQUIRY AND INVESTIGATION BY THE
HIMACHAL LOKAYUKTA
Inquiry by
Himachal
Lokayukta.
12 (1) Subject to the other provisions of this Act, the
Himachal Lokayukta shall inquire or cause an
inquiry to be conducted into any matter
involved in, or arising from, or connected with,
any allegation of corruption made in a
complaint in respect of any public servant.
(2) Notwithstanding anything contained in subsection (1), the Himachal Lokayukta shall not
inquire into any matter involved in, or arising
from, or connected with, any such allegation of
corruption against any Member of the State
Legislature in respect of anything said or a vote
given by him in the State Legislature or any
Committee thereof covered under clause (2) of
Article 194 of the Constitution.
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(3) The Himachal Lokayukta may also inquire into
any act or conduct of any person other than
those referred to in sub-section (1), if such
person is involved in the act of abetting, bribe
giving or bribe taking or conspiracy relating to
any allegation of corruption against a person
referred to in sub-section(1):
(4) No matter in respect of which a complaint has
been made to the Himachal Lokayukta under
this Act shall be referred for inquiry under the
Commissions of Inquiry Act, 1952.
Explanation. - . The Himachal Lokayukta shall not inquire
into any matter.(a) in respect of which a formal and public
inquiry has been ordered under the Public
Servants (Inquiries) Act, 1850; or
(c) which is not connected with the discharge
of functions as public servant of the person
against whom allegation is made; or
(d) relating to an allegation against a public
servant, if the complaint is made after
expiration of period of five years from the date
on which the conduct complained against is
alleged to have been committed.
Explanation. - For the removal of doubts, it is
hereby declared that a complaint under this Act
shall only relate to a period during which the
public servant was holding or serving in that
capacity.
(5) The Himachal Lokayukta shall put on its
website the cases received during the previous
month, cases disposed of during the month with
brief details of each case and cases pending at
the end of month.
(6) The Himachal Lokayukta shall maintain
complete transparency and shall ensure that
complete record of any investigation or inquiry
conducted under this Act, is made public by
putting on a public website.
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(7) Himachal Lokayukta shall ensure effective
implementation of the Right to Information
Act, 2005, in his office.
Complaints
and
preliminary
inquiry and
investigation.
13.
(1) Any person may make a complaint under this
Act to Himachal Lokayukta in the form of a
statement supported by an affidavit in such form
and in such manner as may be prescribed.
(2) The Himachal Lokayukta shall, on receipt of a
complaint under sub-section (1), first decide
whether to proceed in the matter or close the
same, and if the Himachal Lokayukta decide to
proceed further, it shall order the preliminary
inquiry against any public servant by its
investigation wing or any agency (including any
special investigation agency) to ascertain whether
there exist a prima-facie case for proceeding in
the matter.
(3) During the preliminary inquiry referred to in
sub-section (2), the investigation wing or any
agency, as the case may be, may conduct a
preliminary inquiry and on the basis of material,
information and documents collected, shall
submit a report to the Himachal Lokayukta
within sixty days or further extended period from
the date of receipt of the reference.
(4) The Himachal Lokayukta shall consider
every report received under sub-section (3), after
giving an opportunity of being heard to the
public servant, and shall decide as to whether
there exists a prima-facie case, and make
recommendations to proceed with one or more of
the following actions, namely:(a) investigation by its investigation wing or
any investigating agency;
(b) to direct the departmental proceedings or
any other appropriate action against the
concerned public servants by the
Competent Authority; and
(c)
closure of the proceedings against the
public servant and take action to
proceed against the complainant under
this Act.
20
(5) In case the Himachal Lokayukta decides to
proceed to investigate into the complaint, it shall
direct any investigation agency (including any
special agency) to carry out the investigation as
expeditiously as possible and complete the
investigation within a period of six months from
the date of its order:
Provided that the Himachal Lokayukta may
extend the said period by a further period of six
months for the reasons to be recorded in writing.
(6) Notwithstanding anything contained in
section 173 of the Code of Criminal Procedure,
1973, any agency (including any special agency)
shall, in respect of cases referred to it by the
Himachal Lokayukta, submit the investigation
report to the Himachal Lokayukta.
(7) The Himachal Lokayukta shall consider the
report received under sub-section(6) and after
giving an opportunity of being heard to the
public servant may decide as to –
(a)
file charge- sheet or closure report
before the Special Court against the
public servant; or
(b) direct to initiate the departmental
proceedings or any other appropriate
action against the public servant by the
Competent Authority.
(8) The Himachal Lokayukta shall forward the
investigation report to the Competent Authority,
if it is decided to file charge-sheet before the
Special Court, who shall grant or seek the
prosecution sanction or send a report in writing
within 120 days from the date of receipt of
investigation
report,
failing
which
the
prosecution sanction shall be deemed to have
been granted. After receipt of prosecution
sanction or report in writing, the Himachal
Lokayukta shall direct(a) its prosecution wing to initiate prosecution
in the Special Court in respect of the
cases investigated by its Investigation
Wing or any other investigation agency
21
(including any special agency); or
(b)
any other agency in respect of the cases
investigated by such agency on the
direction of Himachal Lokayukta to
obtain its approval and thereafter
initiate prosecution in the Special Court
and forwards a copy of charge-sheet
filed by it under this clause to the
Himachal Lokayukta for the purposes
of superintendence.
(9) The Himachal Lokayukta may, during the
preliminary inquiry or the investigation, as the
case may be , pass appropriate orders for the safe
custody of the documents relevant to the
preliminary inquiry or, as the case may be,
investigation as it deem fit.
(10) The Himachal Lokayukta, if satisfied that
during the investigation any preventive action is
necessary in public interest to prevent the
ongoing incidence of corruption, it may make any
recommendation to
the public authority
concerned to stay the implementation and
enforcement of any decision or take such action
as may be recommended by it. The public
authority shall either comply with the
recommendation of the Himachal Lokayukta or
reject the same within 30 days of the
recommendation thereof.
(11) The website of the Himachal Lokayukta
shall display to the public the status of
complaints pending before it.
(12) In case of a person serving in connection
with the affairs of the Union of India, no
investigation will be started without the approval
of the Central Government.
Persons likely
to be
prejudicially
affected to be
heard.
14. If at any stage of the proceeding, the Himachal
Lokayukta (a) considers it necessary to inquire into the
conduct of any person other than the
accused; or
22
(b) is of opinion that the reputation of any
person other than the accused is likely to be
prejudicially affected by the preliminary
inquiry,
the Himachal Lokayukta shall give to that person a
reasonable opportunity of being heard in the preliminary
inquiry and to produce evidence in his defence.
Himachal
Lokayukta
may require
any public
servant or any
other person
to furnish any
information
etc.
15. Subject to the provisions of this Act, for the
purpose of any preliminary inquiry or
investigation, the Himachal Lokayukta or the
investigating authority, as the case may be, may
require any public servant or any other person
who, in its opinion, is able to furnish information
or produce documents relevant to such preliminary
inquiry or investigation, to furnish any such
information or produce any such document.
CHAPTER-V
INVESTIGATION WING OF THE HIMACHAL
LOKAYUKTA
Investigation
Wing.
16
(1) Notwithstanding anything contained in any law
for the time being in force, the Himachal
Lokayukta shall have an Investigation Wing for the
purpose of conducting fair, impartial and
transparent investigation of any offence alleged to
have been committed by a public servant
punishable under the Prevention of Corruption
Act, 1988, Chapter-IX of the Indian Penal Code or
the Himachal Pradesh Prevention of Specific
Corrupt Practices Act, 1983. The State
Government shall provide such number of
investigation officers and other staff, as may be
required by the Himachal Lokayukta for the
purpose of conducting inquiry or investigation
under this Act.
(2) No investigation shall be conducted by an
officer of the Investigation Wing below the rank of
Inspector of Police.
(3) The manner and procedure of conducting an
23
inquiry under this Act shall be such as may be
specified by Regulations.
(4) The Investigating Officers of the Himachal
Lokayukta
authorized to investigate offences
under the Prevention of Corruption Act, 1988,
Chapter-IX of the Indian Penal Code or the
Himachal Pradesh Prevention of Specific Corrupt
Practices Act., 1983 shall have all the powers which
are vested in a Police Officer while investigating
offences under the Code of Criminal Procedure.
Himachal
Lokayukta
Police Station
Complaint
Authority
17. Places recommended by the Himachal Lokayukta shall
be notified as Himachal Lokayukta Police Stations
within the meaning and under Section 2 clause (s) of
Code of Criminal Procedure, 1973 as amended from
time to time for registration of the cognizable offences
triable under the Prevention of Corruption Act, 1988 as
amended from time to time, Chapter-IX of the Indian
Penal Code, 1860 as amended from time to time and the
H.P. Prevention of Specific Corrupt Practices Act,
1983as amended from time to time.
18
(1) A part time Complaint Authority with two
members would be established in the Himachal
Lokayukta
with the concurrence of the State
Government to entertain complaints against any
officer or staff of the Himachal Lokayukta .
(2) The Member of such authority shall have
knowledge of law or public administration.
(3) Complaints shall be inquired and decided
within two months. The officer or staff of the
Himachal Lokayukta shall be given proper
opportunity to tender his defence. If the officer or
staff member is found guilty of misbehavior or
dishonest or corruption, the authority may order
his dismissal, removal or reduction in rank
including order for his reversion back to the
Department concerned.
CHAPTER-VI
SPECIAL COURTS
24
Constitution
of Special
Courts.
19
(1) The State Government shall on the
recommendations
of
Himachal
Lokayukta
designate Special Courts in consultation with the
High Court to hear and decide the cases under the
Prevention of Corruption Act, 1988, Chapter-IX of
the Indian Penal Code, the Himachal Pradesh
Prevention of Specific Corrupt Practices Act, 1983
or under this Act.
(2) The Special Courts designated under subsection (1) shall decide the trial within a period of
one year from the date of filing of challan in the
Court:
Provided that if the trial is not decided within a period of
one year, the Special Court shall record reasons therefor
and decide the trial within a further period of not more
than three months or such further extended period but
not exceeding a total period of two years for reasons to be
recorded in writing.
Letter of
requests in
certain cases.
20 (1) Notwithstanding anything contained in this Act
or the Code of Criminal Procedure, if in the course
of an preliminary inquiry or investigation into an
offence or other proceeding under this Act, an
application is made to a Special Court by an officer
of the Himachal Lokayukta authorized in this
behalf that any evidence is required in connection
with the preliminary inquiry or investigation of an
offence or proceeding under this Act and he is of
the opinion that such evidence may be available in
any place in another State and the Special Court,
on being satisfied that such evidence is required, it
may issue a letter of request to a court or an
authority in another State competent to deal with
such request to(i)
examining the facts and circumstances
of the case;
(ii)
take such steps as the Special Court
may specify in such letter of request;
and
(iii)
forward all the evidence so taken or
collected to the Special Court issuing
such letters of request.
25
(2) Every statement recorded or document or
thing received under sub-section (1) shall be deemed to be
evidence collected during the course of the inquiry or
investigation.
CHAPTER-VII
PROSECUTION WING OF THE HIMACHAL
LOKAYUKTA
Prosecution
Wing.
21
The Himachal Lokayukta shall have a prosecution
wing comprising of prosecution officers and other
staff to be provided by the State Government on
secondment basis from organization controlled by
the State Government for the purpose of
prosecution of public servant in relation to any
complaint under this Act. The prosecution wing
shall file a case before the Special Court after the
approval of the Himachal Lokayukta or any other
officer authorized by Himachal Lokayukta for
granting such approval in relation to any offence
punishable under the Prevention of Corruption
Act, 1988, Chapter-IX of the Indian Penal Code, or
the H.P. Prevention of Specific Corrupt Practices
Act, 1983.
Explanation:
The superintendence, protection,
management, monitoring and control of all the officers
and staff of the Himachal Lokayukta including that of
Investigation and Prosecution Wings shall be under the
supervision of the Himachal Lokayukta .
CHAPTER-VIII
CIVIL COURTS AND OTHER POWERS TO THE
HIMACHAL LOKAYUKTA
Himachal
Lokayukta to
have powers
of Civil Court
in certain
cases.
22
(1) The Himachal Lokayukta shall have the
powers of a Civil Court trying a suit under the
Code of Civil Procedure, 1908 in respect of the
following matters, namely :(a) summoning and enforcing the attendance
of any person from any part of India and
examining him on oath;
(b) requiring the discovery and production of
any document;
26
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for the examination
of witnesses or other documents; and
(f) any other
prescribed.
matter
which
may
be
(2) Any proceeding before the Himachal
Lokayukta shall be deemed to be a judicial proceeding
within the meaning of section 193 and 228 of the Indian
Penal Code.
(3) If during the course of investigation into a
complaint, the Himachal Lokayukta
feels that
continuance of a Government servant in that position
could adversely affect the course of investigations or that
the said Government servant is likely to destroy or
tamper with the evidence or influence the witnesses or is
likely to continue with corrupt practices, the Himachal
Lokayukta may issue directions for transfer of that
Government servant from that position. The directions so
communicated shall be binding.
(4) The Himachal Lokayukta may, at any stage of
investigation under this Act, direct by an interim order,
appropriate authorities to take such action as is
necessary, to prevent the public servant from secreting
the assets allegedly acquired by corrupt means in
accordance with law
(5) Where, in consequence of information in his
possession, the Himachal Lokayukta has reason to
believe that any person to whom a summon or notice
under this Act, has been or might be issued, may not or
would not produce or cause to be produced any property,
document or thing which may be necessary or useful for
or relevant to any inquiry or other proceedings to be
conducted by him, it may, by a search warrant, authorize
any officer not below the rank of Inspector of Police to
conduct a search or carry out an inspection in accordance
therewith and in particular to, enter and search any
building or place where he has reason to suspect that
such property, or document, is kept:
Provided that the provisions of Code of Criminal
27
Procedure, 1973, relating to search and seizure shall
apply, so far as may be, to search and seizure under this
section:
Provided further that a warrant issued under this section
shall, for all purposes, be deemed to be a warrant issued
by a court under section 93 of the Code of Criminal
Procedure, 1973.
CHAPTER-IX
PROCEEDING OF THE HIMACHAL LOKAYUKTA
Proceedings of
Himachal
Lokayukta.
23 (1) The Himachal Lokayukta, for the purpose of
transaction and allocation of business amongst the
Lokayukta and the Up-Lokayuktas, may regulate
its own procedure.
(2) No act or proceeding of Himachal Lokayukta
shall be invalid merely by reason of –
(a) any vacancy in, or any defect in the
constitution of Himachal Lokayukta ;
(b) any defect in the appointment of a person
acting as a Lokayukta or a Up-Lokayukta
of the Himachal Lokayukta ; or
(c) any irregularity not affecting the merits
of the case.
(3) The hearings in any proceedings before the
Himachal Lokayukta shall be held in public,
except in exceptional circumstance where it is not
in public interest to do so and the reasons for the
same shall be recorded in writing before those
proceedings are held in camera.
CHAPTER-X
Removal of
Lokayukta
and the UpLokayuktas of
Himachal
Lokayukta.
ACCOUNTABILITY OF THE HIMACHAL
LOKAYUKTA
24. (1) The Lokayukta and Up Lokayukta shall not be
removed from his office except by an order of the
Governor passed after an address by the Himachal
Pradesh Legislative Assembly, supported by a majority
of the total Members of the Legislative Assembly and by
a majority of not less that two thirds of the Members
28
thereof, present and voting, has been presented to the
Governor in the same session for such removal on the
ground of proved misbehaviour or incapacity.
(2) the procedure for the presentation of an address and
for the investigation and proof of the misbehaviour or
incapacity of the Lokayukta and Up Lokayuktas under
sub section (1) shall be as provided in the Judges
(Inquiry) Act, 1968, in relation to the removal of a Judge
and, accordingly, the provisions of that act shall subject
to necessary modifications, apply in relation to the
removal of the Lokayukta and Up Lokayukta as they
apply in relation to the removal of a Judge.
(3) If the complaint is frivolous or has been made with
malafide intention, the complaint shall be filed by the
Himachal Lokayukta in the competent court which may
impose a fine upto rupees ten lakhs or an imprisonment
upto one year or with both on the complainant.
Explanation: Before any action for removal of
Lokayukta and Up Lokayukta as provided herein above
is taken by the Governor, reasonable opportunity to
defend himself shall be afforded to the Lokayukta or Up
Lokayukta to meet the basic principle of natural justice.
Budget and
reports of
Himachal
Lokayukta.
25. (1) The Himachal Lokayukta shall prepare its
budget for the next financial year showing the
estimated receipts and expenditure of the Himachal
Lokayukta and forward the same to the State
Government. The Himachal Lokayukta may utilize
the budget sanctioned by the State Government
without any further administrative or financial
approval from any Government agency
(2)
The annual audit of the Himachal
Lokayukta
shall be conducted by the
Comptroller and Auditor General of India.
Annual
Report of
Lokayukta
26.
(1) The Himachal Lokayukta
shall present
annually a
consolidated report in the
prescribed form on its performance to the
Governor.
(2) On receipt of report under sub-section (1),
the Governor shall cause a copy thereof,
together with explanatory memorandum, to be
laid on the Table of the House.
29
CHAPTER-XI
INVESTIGATION AND PROSECUTION AGAINST
HIGH FUNCTIONARIES
Enquiry
against high
functionaries.
27.
No enquiry, investigation or prosecution shall be
initiated against any of the following functionaries
without permission of the Full Bench of the
Himachal Lokayukta :(i)
the Chief Minister and other Members
of the Council of Ministers;
(ii)
Chief Parliamentary Secretaries and
Parliamentary Secretaries;
(iii)
Members
of
Himachal
Legislative Assembly; and
Pradesh
(iv)
Continuation
of Enquiry in
case of death
of
complainant.
Withdrawal of
complaint.
any officer of the rank of Secretary and
above or Head of Department to the
Government of Himachal Pradesh.
28. Enquiry, investigation and prosecution shall continue in
case the complainant dies or is incapacitated from
taking or does not take further steps for substantiating
the allegation, the Himachal Lokayukta, as the case
may be, for reasons to be recorded in writing, proceed
further with the complaint on the basis of the material
available.
29. No complaint shall be permitted to be withdrawn
unless the Himachal Lokayukta is satisfied that the
complaint was made under a bona fide mistake or that
the grievance complained of has been adequately
redressed.
CHAPTER-XII
POWERS TO MAKE RULES AND REGULATIONS
Power to
make rules.
30. (1) The State Government may by notification in the
Official Gazette, make rules to carry out the
provisions of this Act. The rules may include: The
Himachal Lokayukta (Investigation) Rules, 2012,
The Himachal Lokayukta (Officers and Employees
Condition of Service) Rules, 2012 and The Himachal
30
Lokayukta (Condition of Service) Rules, 2012 and
Disposal by Destruction of Records in the Institution
of the Himachal Lokayukta Rules, 2012.
(2) Every rule made under this Act shall be laid,
as soon as may be after it is made, on the Table of
the House.
Power to
make
regulations.
31.
(1) The Himachal Lokayukta may, by notification,
make regulations consistent with this Act to carry out
the provisions of this Act.
(2) In particular and without prejudice to the
generality of the power contained in subsection(1) any such regulations may provide for
all or any of the following matters, namely:(a) the conferment of authority on officers at
different levels to exercise powers under the
Act and to lay down the procedure for any
inquiries including
those relating to
complaints against its officers or members of
the staff;
(b) periods within which the investigations and
inquiries have to be completed;
(c) to provide for the taking of certain decisions
by the Himachal Lokayukta by circulation;
(d) work norms for each category of officers
and staff of Himachal Lokayukta ;
(e) Code of Conduct for the Himachal
Lokayukta organization at all levels;
(f) delegation of any of its powers and
functions, except those powers and functions
which are to be exercised or performed by
it, to the authorities and officers subordinate
to it; and
(g) any other matter on which the Himachal
Lokayukta deems fit to frame the
regulations.
CHAPTER-XIII
WHISTLE BLOWERS
31
Whistle
Blowers.
32. (1) Any person having information of any corruption
in any public authority may send such information
confidentially to the Himachal Lokayukta
and the
Himachal Lokayukta shall get an inquiry made into such
information and if considered necessary get investigation
made under the Prevention of Corruption Act, 1988 or
Himachal Pradesh Prevention of Specific Corrupt
Practices Act, 1983 or Chapter-IX of Indian Penal Code.
(2) The identity of such whistle blower shall not be
disclosed if so desired and the Himachal Lokayukta in
genuine and appropriate cases may issue necessary
directions to provide full protection to such whistle
blowers from any physical victimization, physical threat
or administrative harassment.
(3) The Himachal Lokayukta shall pass orders on the
information received under this section as expeditiously
as possible within 15 days of receipt of such information
and immediate action shall be taken in cases involving a
threat of physical victimization and such orders shall be
complied with by the concerned authorities.
(4)The investigation in complaints by the whistle blowers
facing physical or professional victimization shall be fast
tracked on priority basis at the earliest on the receipt of
the same. No anonymous or pseudonymous complaints
shall be entertained. The complainant shall be required
to disclose his identity to Himachal Lokayukta and the
Himachal Lokayukta on the request of the complainant
shall keep the identity secret.
CHAPTER-XIV
MISCELLENIOUS
Power to
remove
difficulties.
33. (1) If any difficulty arises in giving effect to the
provisions of this Act, the State Government may, in
consultation with Himachal Lokayukta , by order, not
inconsistent with the provisions of this Act, remove the
difficulty:
Provided that no such order shall be
made after the expiry of a period of two years
from the date of commencement of this Act.
(2) Every order made under this section shall be laid
32
on the Table of the House.
Protection of
action taken in
good faith.
34. No suit, prosecution or other legal proceedings under
this Act shall lie against the Lokayukta, Up-Lokayuktas,
officers, employees and any other public servant, agency
or any person in respect of anything which is done in
good faith or intended to be done under this Act or the
rules or regulations made thereunder.
Lokayukta,
UpLokayuktas,
officers and
employees of
Himachal
Lokayukta to
be public
servants.
35. The Lokayukta, Up-Lokayuktas, officers and other
employees of the Himachal Lokayukta shall be deemed,
when acting or purporting to act in pursuance of any of
the provisions of this Act, to be public servants within the
meaning of section 21 of the Indian Penal Code.
Act to have
overriding
effect.
36. The provisions of this Act shall have overriding effect
notwithstanding
anything
inconsistent
therewith
contained in any other law for the time being enforced.
Provisions of
this Act to be
in addition of
other laws.
Power to
delegate.
37. The provisions of this Act shall be in addition to, and
not in derogation of, any other law for the time being in
force.
38. The Himachal Lokayukta may, by general or special
order in writing, and subject to such conditions and
limitations as may be specified therein, direct that any
administrative or financial power conferred on it may be
exercised or discharged by such officers as may be
specified in the order.
Repeal and
Savings.
39. (1) The Himachal Pradesh Lokayukta Act, 1983, is
hereby repealed.
17 of 1983
(2) Notwithstanding such repeal anything done or any
action taken under the Act so repealed shall be deemed to
have been done or taken under the corresponding
provisions of this Act.
33
THE SCHEDULE
[See section 7(2)]
I,………………………………having been appointed Lokayukta
(or an Up-Lokayukta) of the Himachal Lokayukta do swear in the name of
God/solemnly affirm that I will bear true faith and allegiance to the Constitution
of India as by law established, that I will duly and faithfully and to the best of
my ability, knowledge and judgment perform the duties of my office without
fear or favour, affection or ill-will.
**************
34
STATEMENT OF OBJECTS AND REASONS
An Act to provide for setting up a regime of corruption free society so
that the resources of state including of various authorities, instrumentalities,
agencies, undertaking, and bodies either owned, controlled or substantially funded
by the Government directly or indirectly are utilized for the purposes for which
such resources are earmarked for their optimum use for the general public without
any wastage for any oblique purposes, gains and ulterior motives so that there is
practical transparency and accountability in the working of such authorities, bodies
and institutions owned or controlled by Government.
And whereas there is a need to provide an effective, autonomous and
independent authority to take appropriate remedial action against those
functionaries of the Government who indulge in mal-practices, abusing and
misusing their position and power for their personal gains and wrongful loss to the
Government and exploitation of the general public;
And whereas it is expedient to provide safety and protection to the
whistle-blowers and others who have given information and assistance in confidence
for checking malpractices, exploitation, abuse and misuse of the resources of the
State;
And whereas, the existing Himachal Pradesh Lokayukta Act, 1983
was not found to be effective for curbing some of such mal-practices, abuse and
misuse of power and authority on the part of public servants;
Now, therefore, it is expedient to re-enact the Himachal Pradesh
Lokayukta Bill to establish independent and autonomous Himachal Lokayukta to
address and take remedial action to contain corruption and to bring to justice
public servants who indulge in corruption.
35
FINANCIAL MEMORANDUM
The provisions of the Bill, if enacted, shall involve recurring expenditure
of approximately 1.26 Crores rupees per annum from the State Ex-checquer
___________________
MEMORANDUM REGARDING DELEGATED LEGISLATION
Clauses 30 and 31 of the Bill seeks to empower the State Government and
the Himachal Lokayukta to make rules and regulations respectively to carry out
the provisions of this Act. The proposed delegation of power is essential and
normal in character.
_________________
RECOMMENDATION OF THE GOVERNOR UNDER ARTICLE 207 OF
THE CONSTITUTION OF INDIA
(File No. Home(Vig)A(3)-1/2011
The Governor of Himachal Pradesh having been informed of the subject
matter of the Himachal Pradesh Lokayukta Bill, 2012, recommends under
Article 207 of the Constitution of India, the introduction and consideration of
the Bill by the Legislative Assembly.
__________
36
Bill No. 26 of 2012.
THE HIMACHAL PRADESH LOKAYUKTA BILL, 2012
A
Bill
to re-enact the law to provide for establishment of an independent body of
Himachal Lokayukta to inquire into complaints and allegations of corruption
against public functionaries and for matters connected therewith or incidental
thereto.
(PREM KUMAR DHUMAL)
Chief Minister,
Himachal Pradesh.
(A.C.Dogra)
Principal Secretary (Law).
Shimla:
The 4th April, 2012.
37